On July 7, 2021, the Court of Justice for the European Union (the CJEU), in Ardagh Metal Beverage Holdings GmbH & Co. KG v European Union Intellectual Property Office (T‑668/19), dismissed a trademark application for the registration of a sound mark because it is not distinctive. This case is the court’s first ruling on an application for registration of a sound mark submitted in audio format.

Ardagh Metal Beverage Holdings GmbH & Co. KG (the Applicant) filed a trademark application with the European Union Intellectual Property Office (EUIPO) to register the sound of a drink can being opened, followed by a silence of approximately one second and a fizzing sound lasting approximately nine seconds. The Applicant submitted the mark as an audio file and sought registration in relation to various drinks and metal containers for storage or transport. Upon review, the EUIPO rejected the application on the grounds that the mark was not distinctive, and this led the Applicant to bring an action to the CJEU to annul the EUIPO’s decision.   

In determining the matter, the CJEU clarified that the criteria for assessing the distinctiveness of sound marks do not differ from other marks and a sound mark must have a certain resonance that allows consumers to perceive it as a trademark and associate the mark with the commercial origin of its goods and services. The CJEU found that the sound produced by the opening of a can is a functional element in relation to the associated goods and the relevant public already associates the sound of fizzing bubbles with drinks. These findings were not affected by the silence of approximately one second being placed in between the sounds, as the CJEU determined that the sound elements and silence, taken as a whole, were not enough to distinguish the proposed mark from comparable sounds in the field of drinks. Having not found inherent characteristics in the mark that would allow the public to perceive the commercial origin of the associated goods, the CJEU agreed with the EUIPO’s conclusion that the sound mark lacked the distinctiveness necessary for registration.

Summary By: Imtiaz Karamat


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